The Treaty of Lisbon is aimed at strengthening the capacity of the European Union (EU) to decide and to act, whilst guaranteeing the legitimacy of decisions adopted. It therefore reforms the EU’s decision-making process, in particular by amending the legislative procedures in force.

Article 289 of the Treaty on the Functioning of the EU now only refers to two types of legislative procedure:

ordinary legislative procedure;

special legislative procedures.

In addition, the Treaty of Lisbon introduces ‘passerelle clauses’. These clauses enable the ordinary legislative procedure to be generalised, under certain conditions, to areas that were initially outside its scope.

ordinary legislative procedure

The ordinary legislative procedure replaces the former codecision procedure. This procedure is the most legitimate from a democratic point of view. It involves the European Parliament as a co-legislator at the Council’s side. Over time, it has also become the most widely used legislative procedure. The Treaty of Lisbon therefore confirms this trend by changing its name and establishing it as a common law procedure. Continuing on from previous Treaties, the Treaty of Lisbon also extends the ordinary legislative procedure to new areas of policy (see file “Extension of voting by qualified majority and the ordinary legislative procedure”).

The modalities of the ordinary legislative procedure are the same as those of the former codecision procedure. They are described in Article 294 of the Treaty on the Functioning of the EU. The Council and the Parliament are placed on an equal footing. The two institutions adopt legislative acts either at first reading, or at second reading. If, following the second reading, the two institutions have still not reached agreement, a Conciliation Committee is convened.

In addition, the voting rule under the ordinary legislative procedure is qualified majority. In order to facilitate decision-making and strengthen the effectiveness of the procedure, the Treaty of Lisbon has also laid down a new definition of a qualified majority (see file “Council of the European Union”).

special legislative procedures

Special legislative procedures replace the former consultative, cooperation and assent procedures. The objective is to simplify the EU’s decision-making process by making it clearer and more effective. As their name indicates, these procedures derogate from the ordinary legislative procedure and therefore constitute exceptions.

In special legislative procedures, the Council of the EU is, in practice, the sole legislator. The European Parliament is simply associated with the procedure. Its role is thus limited to consultation or approval depending on the case.

Unlike the ordinary legislative procedure, the Treaty on the Functioning of the EU does not give a precise description of special legislative procedures. The rules of special legislative procedures are therefore defined on an ad hoc basis by the Articles of the Treaty on European Union and the Treaty on the Functioning of the EU that provide for their implementation.

PASSERELLE CLAUSES

The Treaty of Lisbon has introduced passerelle clauses in order to be able to apply the ordinary legislative procedure to areas for which the Treaties had laid down a special legislative procedure. Furthermore, these clauses also allow voting by qualified majority to be applied to acts that are to be adopted unanimously.

There are two types of passerelle clause:

the general passerelle clause applying to all European policies; activation of this clause must be authorised by a Decision of the European Council acting unanimously (see file “Amendment of Treaties”);

specific passerelle clauses relating to certain European policies.

Specific passerelle clauses have some procedural particularities with respect to the general passerelle clause. As an example, national Parliaments do not generally have a right to object, which is granted to them by the general clause. In other cases, the application of certain specific clauses may be authorised by a Decision of the Council, and not of the European Council as is the case for the general clause. The implementing rules for the specific clauses therefore differ from case to case and are described in the Articles of the Treaties providing for their application.

There are six specific passerelle clauses to be applied to:

the multiannual financial framework (Article 312 of the Treaty on the Functioning of the EU);

the Common Foreign and Security Policy (Article 31 of the Treaty on European Union);

judicial cooperation concerning family law (Article 81 of the Treaty on the Functioning of the EU). This specific clause is the only clause regarding which national Parliaments retain a right to object;

reinforced cooperation in areas governed by unanimity or by a special legislative procedure (Article 333 of the Treaty on the Functioning of the EU);

social affairs (Article 153 of the Treaty on the Functioning of the EU);

environmental matters (Article 192 of the Treaty on the Functioning of the EU).